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Horan v O'Brien

Horan v O'Brien

Case [2021] ACTSC 323 19 November 2021

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Horan v O’Brien
Citation:	[2021] ACTSC 323
Hearing Date:	19 November 2021
DecisionDate:	19 November 2021
Before:	Mossop J
Decision:	See [33]
Catchwords:	CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal against sentence – assault occasioning actual bodily harm – offence committed while in custody – where magistrate did not exercise discretion in s 72 of the Crimes (Sentencing) Act 2005 (ACT) to introduce concurrency with existing sentence – where operation of s 118 of the Crimes (Sentence Administration) Act 2005 (ACT) means the appellant will be ineligible parole until both sentences are fully served – sentence manifestly excessive in the circumstances – appellant resentenced
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), ss 118, 121, 129 Crimes (Sentencing) Act 2005 (ACT), ss 10, 64, 72
Cases Cited:	R H McL v The Queen [2000] HCA 46; 203 CLR 452 R v Byron; R v Earley (1992) 59 SASR 132 R v Devries [2005] VSCA 95 R v Horan [2020] ACTSC 189 R v Potts [2018] ACTSC 299 The Queen v Rappel [2019] ACTCA 11 Tracey v The Queen [2020] ACTCA 51
Parties:	Kieran Horan (Appellant) Rowan O’Brien (First Respondent) Sentence Administration Board (Second Respondent)
Representation:	Counsel J Cooper (Appellant) K McCann (First Respondent)
Solicitors Aboriginal Legal Service (Appellant) ACT Director of Public Prosecutions (First Respondent)
File Number:	SCA 34 of 2021
Decision under appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Campbell Date of Decision: 17 June 2021 Case Title: O’Brien v Horan Court File Number: CC21/1288

MOSSOP J:

Introduction

On 10 February 2020, the appellant was sentenced by Burns J to an aggregate sentence of imprisonment of two years and three months (27 months) with a non-parole period of 14 months in relation to offences of burglary, theft and damaging property: see R v Horan [2020] ACTSC 189. While in custody pursuant to those sentences, the appellant on 1 November 2020 assaulted another inmate causing him actual bodily harm. It was a premeditated, unprovoked attack on another person by five detainees. He was sentenced for that offence to a sentence of six months’ imprisonment (reduced from nine months on account of the plea of guilty). That sentence was wholly cumulative upon the earlier sentences. Because the sentence was an “excluded sentence of imprisonment” within the meaning of s 64 of the Crimes (Sentencing) Act 2005 (ACT), no non-parole period was set in relation to the sentence of six months’ imprisonment and the non-parole period associated with the existing sentence was not altered.

After the imposition of the sentence for assault occasioning actual bodily harm, the position of the appellant was as follows:

(a)he was subject to the earlier sentences which expired on 18 February 2022;
(b)the non-parole period expired on 18 January 2021; and
(c)the sentence for assault occasioning actual bodily harm commenced on 19 February 2022 and ended on 18 August 2022.

There was, therefore, on the face of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Horan v O'Brien

Details

AGLC: Horan v O'Brien [2021] ACTSC 323
Case: [2021] ACTSC 323
Decision Date

CaseChat Overview and Summary

Kieran Horan appealed against a sentence imposed on him by the Magistrates Court of the Australian Capital Territory. The sentence was imposed on him for the offence of assault occasioning actual bodily harm. The court was required to determine whether the sentence was manifestly excessive. The court found that the sentence was manifestly excessive because it did not allow for any period of supervision in the community, which is an appropriate outcome for a young man with a long history of drug abuse. The court also found that the magistrate did not adequately consider the effect of the Crimes (Sentence Administration) Act on the sentence that was being imposed. The court resentenced the appellant to imprisonment for a period of nine months, suspended upon the offender giving an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 12 months.

The appeal is allowed, and the sentence imposed on 17 June 2021 is set aside. The offender is resentenced as follows: on charge CC2021/1288 the offender is convicted and sentenced to imprisonment for a period of nine months. That sentence is suspended upon the offender giving an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 12 months with the following additional condition: he is to be on probation subject to the supervision of the Director-General and obey all directions of the Director-General for a period of 12 months or such lesser period as determined by the Director-General.

Orders